Introduction

A legislative proposal currently advancing through Ghana’s policy space seeks to mandate compulsory paternity testing for all children born in healthcare facilities, alongside the criminalisation of what its proponents call “paternity fraud.” Its stated objectives: securing biological certainty, protecting paternal interests, and deterring deception or fraud, indeed hold an immediate and superficial appeal to many. After all, few would argue that truth has no place in law.

Law, however, does not pursue truth in the abstract. It demands truth through a disciplined framework of rules, principles, and consequences that must uphold fairness, coherence, and impartiality. When rigorously tested against these essential standards, the proposed bill reveals a weak foundation. What is presented as a neutral mechanism for legal certainty in fact injects suspicion directly into the core of the legal system, discriminatorily targeting mothers and enforced by the coercive power of criminal punishment. And in the next few paragraphs, I shall demonstrate why this proposed bill, if it ever materialises in the manner proposed by its proponents, would pose a grave danger not only to mothers, but to families and to the country at large.

I shall show, first, that it is built on a false and legally indefensible premise that a biological mismatch is evidence of fraud, thereby collapsing the vital distinction between innocent mistake, scientific anomaly, and deliberate deception. Second, I shall expose the irrational selectivity of a regime that interrogates only paternity while leaving maternity unquestioned, revealing not a pursuit of truth, but a design that structurally targets mothers. Third, I shall demonstrate that Ghanaian law has long settled the question of parentage under Section 32 of the Evidence Act, 1975 (NRCD 323), Sections 40 to 42 of the Children’s Act, 1998 (Act 560 as amended ), and Section 47 (1)(f) of the Courts Act, 1993 (Act 459 as amended), providing a coherent, child-centered legal framework that renders compulsory testing unnecessary and jurisprudentially disruptive. Fourth, I shall show that the proposed bill would be economically indefensible. As a private member’s bill that it would be, it cannot draw on the Consolidated Fund and would therefore be structurally incapable of State financing; yet even to contemplate public funding would mean diverting scarce national resources into a regime of universal suspicion. If, on the other hand, the burden is shifted to families, the absurdity would then be complete: parents already grappling with hospital and postnatal expenses would be compelled to pay for tests they neither need nor desire, all to satisfy a baseless presumption of distrust. The result is the systematic compulsion of mothers and families to fund their own vindication at birth, exposing the complete economic and moral bankruptcy of the proposed bill. Finally, I shall establish that, as a matter of criminal law, the bill is fundamentally incoherent, for it seeks to punish outcomes rather than proven fault, a relic of the ancient trial by ordeal, where an adverse result alone was treated as proof of guilt. 

In truth, what is presented as a “Paternity Fraud” bill could be more accurately named a “Proof of Fidelity at Birth” bill, a scheme that presumes doubt, manufactures distrust, and compels mothers to prove their sexual exclusivity at the very threshold of life, death, and birth.

A useful analogy, drawn from human experience rather than law, may be found in the narrative of Joseph in the Christian scriptures. Confronted with what appeared to be a clear biological impossibility, he initially drew a rational and socially consistent inference that Mary’s pregnancy signified infidelity, warranting quiet dissolution of the relationship to avoid public shame. That inference was later displaced by further disclosure, revealing that the initial appearance did not exhaust the truth of the circumstances.

Joseph’s inference was reasonable on the facts available, but incomplete. Likewise, a legal system that treats every DNA-based paternity exclusion as conclusive evidence of deception risks converting partial biological truth into definitive criminal and moral judgment.

This paper thus serves as a caution to the proponents and drafters of the proposed bill: not every biological exclusion is the product of fraud, and not every mismatch reflects wrongdoing. To criminalize all exclusions is to collapse the distinction between error, circumstance, and intent; a logic inconsistent with both legal principle and deeper moral intuition.

I. An Incomplete Pursuit of Certainty and the Dislocation of Criminal Liability from Moral Fault

Let us begin with a premise so fundamental that it anchors both law and reason: if the State's objective is to ensure that no parent leaves a healthcare facility with a child who is not biologically theirs, then that objective must be pursued with consistent logic, as a parentage test, a test of both parents.

The proposed bill, however, directs its scrutiny exclusively toward paternity. It does not extend the same verification to maternity, despite the reality that maternity, though often treated as certain, is not beyond the reach of institutional or human error. In my own practice sitting as a family court judge, I have come across a case where a DNA test performed on both mother and father returned a verdict of no biological linkage with the set of twins they had delivered. Hospital systems are fallible. Instances of neonatal misidentification or baby-switching, whether inadvertent or deliberate, are rare but undeniably possible. That case was not one of deception; it was one of institutional breakdown. Yet under the proposed bill, that mother would have been investigated, charged, and presumed fraudulent, while the hospital's error would have escaped all scrutiny.

This selective focus creates a structural imbalance. Where a paternity mismatch arises, in the absence of any corresponding inquiry into maternity, it will almost inevitably be read as evidence of female infidelity and, within this framework, as proof of paternity fraud. The possibility of institutional error fades from consideration, while suspicion attaches swiftly, and almost exclusively, to the mother. A system that examines only one side of parentage cannot reveal the full truth. It is designed to reach a predetermined conclusion rather than uncover what actually happened.

The proposed bill, as is being argued by its proponents, goes beyond simple verification. It proposes to introduce criminal sanctions. This raises a more basic question: what exactly is the wrongful act to be punished? Perhaps, the infidelity of a woman. 

Criminal law is not meant to punish unfortunate or undesirable outcomes. It rests on personal culpability. For someone to be held criminally liable, their conduct must be both voluntary and blameworthy, and it must involve a guilty state of mind, intent, or recklessness, the mens rea. To punish a mother of an infant simply because a DNA test later reveals a mismatch, without any proof of actual deception, is to return to the logic of the medieval trial by ordeal, where the outcome itself was treated as a divine verdict. Modern law has rightly abandoned that framework of criminal justice.

Consider a phenomenon that, while rare, is biologically undeniable: heteropaternal superfecundation, where twins are born with different biological fathers because two eggs were fertilized by sperm from different men within the same ovulation cycle.

In the documented case of twins Lavinia and Michelle Osbourne, born minutes apart but to different fathers, the mother had done nothing criminally wrong. She had not committed fraud. She had not deceived anyone. She could not have known, and had no way of knowing, that her twins had different fathers. Yet under the proposed bill for Ghana, the compulsory DNA test would have revealed a mismatch for one twin, and the presumption baked into the bill’s architecture would have rushed toward a conclusion of deliberate deception. A mother entirely innocent of any fraudulent intent would have been investigated, potentially charged, and subjected to criminal sanction for a biological outcome she could neither control nor foresee.

This case exposes a conceptual flaw in the proposed bill’s logic: a DNA test does one thing, and one thing only, it establishes or excludes biological linkage. It cannot, and does not, speak to intention, knowledge, or motive. Yet the proposed bill treats the scientific outcome as though it carries, within it, proof of culpability with regard to fraud. That is a grave error of criminal justice jurisprudence.

Real courtroom experiences reinforce this concern. There are documented cases where DNA testing excludes both the presumed father and the mother. In these situations, the cause is usually not deliberate deception by the mother, but institutional failure, most commonly, mix-ups in the hospital’s neonatal identification and handling processes.

In a hospital setting, childbirth is not a private or self-managed event. It is overseen by trained medical professionals following established protocols. The identification, labelling, and transfer of newborns are entirely under the hospital’s control. A woman in labour or recovering from the birthing process does not direct or supervise these processes. She is usually too exhausted or under the influence of medication to properly oversee the handling of her baby.

To impose criminal liability in such cases is to punish someone for something they neither intended nor could control. The Osbourne case illustrates this principle in stark terms: if biology itself can produce a paternity mismatch without any deception whatsoever, then a law that criminalizes mismatches as presumptive fraud will inevitably ensnare the innocent. It breaks the essential link between fault and punishment. A legal framework like this does not merely risk injustice; it makes it inevitable.

II. The Ghanaian Jurisprudential Foundation and the Limits of Legal Intervention

At the core of Ghanaian parentage law is a principle that is often misunderstood in current debates on genetic testing: the law does not require that a child at birth be assigned his biological father as a matter of scientific certainty. It requires, instead, that the child have a legal father from the moment of birth. This distinction is foundational. The law is not in the business of suspending a child’s identity until biology is verified; it is in the business of securing that identity immediately through legal presumption.

That is why paternity operates as a rebuttable presumption. It is not a declaration of biological fact, but a legal mechanism for managing uncertainty. Where doubt arises, it may be challenged with evidence in court. But crucially, the law does not treat uncertainty as wrongdoing. A mother may genuinely be mistaken about paternity without any element of fraud or criminal intent. Mistake is not deception, and the law has never conflated the two.

This logic is reflected in Section 32 of the Evidence Act, 1975 (NRCD 323), which presumes a child born in marriage to be the husband’s child. The aim is not to override biology, but to ensure that no child is left in a legal limbo while biological truth is investigated. Legal identity is secured first; disputes are resolved later. This is significant in upholding the welfare principle, the best interest of the child, as per Section 2 of the Children’s Act, 1998 (Act 560 as amended).

The proposed bill departs radically from this legal framework. By making DNA confirmation a condition for legal fatherhood, it replaces a rebuttable presumption with a precondition. The result is jurisprudentially incoherent: a child may exist for a time without a recognized father, not because the law lacks a presumption, but because the scientific process has not yet been completed. That is not legal refinement; it is legal destabilization.

Parentage in law has never been purely biological. It is also about stability, responsibility, and the child’s immediate welfare (Section 2 of Act 560). Elevating DNA testing from an evidentiary tool to a gatekeeper of legal fatherhood replaces certainty with contingency, making legal status dependent on laboratory timelines and accuracy rather than legal principles.

Even if universal testing were desirable, its timing is deeply problematic. The immediate postnatal period is one of physical vulnerability and emotional adjustment. Introducing compulsory testing and implicit suspicion at that stage distorts the protective role of family law.

Practically, the flaw is stark. Where a husband is absent at birth, travelling, working abroad, or otherwise unavailable, the child would remain legally fatherless until testing is completed. That disrupts immediate access to support, inheritance, and recognition, contrary to the very purpose of Ghanaian parentage law: to ensure that no child begins life in legal uncertainty and stigmatization.

In truth, the proposed bill does not strengthen the law of parentage. It dismantles a coherent presumption-based system and replaces it with a verification regime that shifts the burden of uncertainty onto mothers, not because wrongdoing is proven, but because suspicion has been institutionalized.

III. The Persistence of Outdated Assumptions and the Problem of Selective Scrutiny

The proposed bill rests on a deeply problematic assumption: that a DNA mismatch is, in itself, evidence of deception or fraud. That inference is not only scientifically reductive but also jurisprudentially unsafe. Biological discrepancy does not equal fraud. At most, it establishes uncertainty. In law, uncertainty is not wrongdoing. A mother may genuinely and in good faith believe a man is the father, only for later scientific testing to show otherwise. That is not deception; it is error. And the law has always drawn a clear line between the two. I daresay that her “sin” was in having unprotected sexual intercourse with more than one male partner during her fertile window. This is undoubtedly a question of morality and not criminality.

Fraud, however, requires criminal intent or conscious dishonesty. Mistake does not. To collapse this distinction is to replace culpability with hindsight and punish innocence as though it were criminal intent. Criminal liability cannot be built on what science later reveals, but only on what a person knowingly and deliberately did at the material time.

If the objective is simply to determine biological parentage, then DNA testing must remain within that narrow evidentiary function. But if it is deployed as a proxy for interrogating mothers’ fidelity, moral character, and sexual exclusivity, then the proposed bill ceases to be a neutral legal instrument. It becomes a mechanism of suspicion dressed in scientific language.

History warns against this move: when legal systems treat unexplained outcomes as proof of wrongdoing, as they did in the age of ordeals, they shift from adjudicating fault to presuming it. In such a framework, biological results risk being misread as moral verdicts, rather than evidence requiring interpretation within context. A coherent legal system must resist equating biological discrepancy with criminal liability. Law responds to conduct, not retrospective scientific surprise. Circumstance is not a crime.

The structure of the proposed bill further entrenches this concern. It is inherently asymmetrical: any mismatch will, in practice, fall on the mother, exposing her to scrutiny, stigma, and potential legal consequences. The effect is a regime that presents itself as neutral verification but operates as targeted suspicion. 

IV. Economic and Institutional Implications

Any responsible policy must be judged not only by its stated goals but by how it functions in the real world. When examined on this practical level, the proposed bill encounters serious and insurmountable difficulties.

The financial implications alone are devastating. A nationwide mandatory DNA or paternity testing regime would impose enormous costs. Under Ghana’s legislative rules, a private member’s bill is not permitted if it creates a significant financial burden on the Consolidated Fund. If the proposed bill expects the government to bear the cost of testing every child, it fails on this constitutional ground alone. Even if that obstacle were ignored, the policy remains indefensible. Taxpayers, including traders in Makola, farmers in Bawku, teachers in Cape Coast, and virtually everyone in Ghana, would be forced to fund universal genetic testing for families who have neither requested nor need it merely to determine biological paternity. This would happen while the healthcare system still struggles with basic maternal care: hospital beds, skilled personnel, and emergency services. Redirecting scarce public resources from urgent health needs to a program of universal suspicion is difficult to justify as responsible governance.

Shifting the cost to individuals does not improve the situation. If the mother is required to pay, a woman recovering from childbirth would have to finance a test that effectively questions her fidelity. This is not merely a financial burden but a deep dignitary harm. If the man is made to pay, a trusting husband who has no doubts about his paternity would still be compelled to spend money to prove what he already accepts. The law thus manufactures doubt and then invoices him for resolving it. If both parents are required to pay jointly, new families already facing financial strain would incur yet another mandatory expense for a test they may neither need nor desire. In every scenario, the burden is imposed universally without regard to actual need, a completely unwarranted extra medical expense that people should voluntarily seek when they need and can afford it.

Beyond cost, the institutional demands are overwhelming. A functional nationwide system would require reliable procedures for sample collection, secure handling and storage, accurate laboratory analysis, and timely results. Each step introduces risks of error: mislabelling, contamination, delays, and administrative mistakes. A single failure in the chain of custody could produce a false result, triggering suspicion, emotional distress, family conflict, and possibly wrongful legal consequences. A policy that depends on near-perfect institutional performance in an already strained system must be viewed with great caution.

V. Evidence, Justification, and a More Coherent Path

The proposed bill is premised on the assertion that paternity fraud constitutes a widespread problem requiring universal intervention. Such an assertion demands empirical support. Legislative responses of this magnitude must be grounded in demonstrable need, not in perception or anecdote. In the absence of such evidence, the proportionality of the proposed response remains open to serious question. What in fact is the empirical evidence supporting such a sweeping need for a state sanctioned universal paternity verification?

If the objective is to strengthen confidence in parentage, then the approach must be both balanced and targeted. Existing legal mechanisms already permit the use of DNA evidence in appropriate cases, under judicial supervision. These mechanisms are responsive to actual disputes rather than premised on universal suspicion.

A coherent reform agenda would build upon these foundations. It would distinguish clearly between institutional error and intentional misconduct. It would recognize that phenomena such as heteropaternal superfecundation, however rare, demonstrate that biological mismatches can arise without any deception or fraud whatsoever. It would preserve the dignity of those affected. And it would ensure that any resort to criminal sanction is reserved for cases in which culpability is established beyond a reasonable doubt, not handed down as the automatic consequence of a laboratory result.

VI. International Human Rights Dimensions

Beyond its internal doctrinal and practical flaws, the proposed bill cannot survive scrutiny under Ghana’s binding international obligations. As a State Party to the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United Nations Convention on the Rights of the Child (UNCRC), the African Charter on Human and Peoples’ Rights, and the Maputo Protocol, Ghana has voluntarily assumed binding commitments to respect privacy, eliminate gender discrimination, prioritise the best interests of the child, and protect mothers’s dignity. The proposed bill collides with each of these commitments.

Under Article 17 of the ICCPR, which provides that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence,” compulsory or mandatory paternity testing of all children constitutes a blanket interference with the privacy of mothers, children, and families. The Human Rights Committee, which monitors compliance with the ICCPR, has held that interferences with privacy must be provided by law, pursue a legitimate aim, and be proportionate to that aim. The Universal testing proposed by the bill would likely fail this proportionality test, as it is a far more intrusive means of addressing paternity concerns than targeted testing in genuinely disputed cases. Such blanket interference would be “arbitrary” within the meaning of Article 17 unless shown to be necessary and proportionate, a showing the proposed bill cannot make.

Under CEDAW, which Ghana ratified in 1986, Article 5(a) requires States Parties to modify social and cultural patterns to eliminate prejudices and practices based on the idea of female inferiority or stereotyped gender roles. The proposed bill reinforces harmful gender stereotypes by treating mothers generally as presumptively deceptive and fraudulent about the paternity of their children. It imposes a burden on mothers that is not imposed on fathers, requiring them to prove their fidelity through compulsory or mandatory testing. The CEDAW Committee has consistently held that such gendered burdens violate the Convention. In its Concluding Observations on Ghana’s periodic reports, the CEDAW Committee has expressed concern about persistent gender stereotypes and called for their elimination. This proposed bill would move Ghana in the opposite direction, entrenching rather than eliminating stereotypes about female deception or fraud.

Under Article 3 of the UNCRC, which Ghana ratified in 1990, “[i]n all actions concerning children... the best interests of the child shall be a primary consideration.” The proposed bill prioritises biological certainty over the child’s interest in immediate legal identity, stability, and belonging. A child whose paternity test at birth reveals a mismatch would face legal fatherlessness, contrary to the child’s best interests. Moreover, while the child’s right to identity under Article 8 of the UNCRC includes the right to know one’s parents, this right does not require compulsory testing of all children; it requires that children have access to information about their origins in appropriate circumstances. The proposed bill conflates the child’s right to know with the State’s interest in policing paternity.

Under the African Charter on Human and Peoples’ Rights (the Banjul Charter), to which Ghana is a party, Article 18(3) requires the State to ensure the elimination of every discrimination against mothers and to protect the rights of mothers and children. The African Commission has interpreted Article 18 to require States to adopt legislative measures to eliminate gender discrimination in all its forms. The proposed bill constitutes discrimination against mothers by imposing a burden on them that is not imposed on fathers. Furthermore, Article 4 of the African Charter guarantees the right to respect for one’s life and the integrity of one’s person. Compulsory or mandatory DNA testing, which requires the extraction of biological samples, interferes with bodily integrity. While such interference may be justified in some circumstances, blanket testing of all babies would be difficult to justify under the Charter.

Under the Maputo Protocol, which Ghana ratified in 2005, Article 2 requires States to combat all forms of discrimination against mothers, and Article 3 guarantees mothers the right to dignity, including the protection of their physical and psychological integrity. The Maputo Protocol also requires States to eliminate harmful practices and stereotypes. By presuming female deception or fraud, the proposed bill reinforces harmful stereotypes about mothers’s sexuality and honesty, contrary to the spirit and letter of the Protocol.

Even the jurisprudence of the European Court of Human Rights under Article 8 of the European Convention, though not binding on Ghana, provides persuasive authority. The Court has held that compulsory DNA testing without consent constitutes an interference with private and family life. In Mikulić v Croatia, the Court held that while a State’s refusal to compel a potential father to submit to DNA testing could violate rights, any compulsory testing must be proportionate and subject to judicial oversight. The proposed Ghanaian bill goes far beyond European jurisprudence, mandating testing without any judicial involvement and without any showing of necessity.

When domestic legislation cannot be reconciled with a nation’s binding treaty obligations, and conflates with international best practices, the argument for its enactment collapses. Ghana cannot, by legislative fiat, exempt itself from the international human rights framework it has voluntarily embraced and echoed in several of her own domestic legislation including her 1992 Constitution.

VII. Conclusion

The question before Ghana is not whether the law should recognize truth, but how it should pursue it, with wisdom or with recklessness. A system that begins with suspicion, detaches liability from fault, and unsettles the ancient protections long afforded to mothers and children in the name of scientific certainty risks achieving the very opposite of justice. It promises clarity but delivers confusion; it offers certainty but produces fatherless children in the eyes of the law; it demands accountability but burdens only one side; it promises freedom from paternity deception but delivers insensitivity and indignity to maternal and neonatal wellbeing.

At the sacred hour when a woman has just brought forth new life, exhausted in body and soul, the law’s duty is not to cast doubt upon her, but to extend its shield of protection. It must stand as guardian, not inquisitor. In matters of parentage, the State must never forget that it deals not merely with biology, but with human vulnerability, family honour, and the innocent child who has done no wrong. The phenomenon illustrated by the Osbourne twins, where biology produces a result that confounds simple expectations of deception, reminds us that innocence is not always visible to a laboratory. A mother may be entirely blameless even when a DNA test reveals a mismatch. The law must be humble enough to admit this possibility.

We stand at a parting of the ways. One path preserves a balanced, child-centered framework rooted in our law and experience, a presumption that has served generations by securing identity and belonging from the first breath of life. The other leads to a complex, costly, and intrusive regime that weaponizes science, strains public resources, deepens inequalities, and disturbs the very foundations of fairness.

Let us choose the path of prudence. Let Ghana retain the wise and humane principle enshrined in Section 32 of the Evidence Act, 1975 (NRCD 323). Let DNA (paternity) testing be available where genuine doubt exists, ordered by the courts, with proper safeguards and equal justice for all as provided in Sections 40 to 42 of the Children’s Act, 1998 (Act 560 as amended), and Section 47(1)(f) of the Courts Act, 1993 (Act 459 as amended). And let us firmly reject any system that seeks to criminalize the infidelity of one gender only (mothers), while creating a sense of insecurity for newborn babies, innocent of any wrongdoing.

True justice demands both biological truth and procedural fairness. In this decisive hour, Ghana must refuse to sacrifice the latter upon the altar of the former. We owe our children, our mothers, and our future nothing less.

If circumstances ever justified verifying parentage at the time of birth, could we, as a nation, propose a process that is less discriminatory, more sensitive, more legally sound, and fundamentally just?